BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

During Jay-Jay, Dom & Randell, the hosts discussed their conversation with a guest the previous day who was described as a successful voice coach, and who gave tips about putting on a ‘sexy voice’. One of the hosts prank called two phone sex chat lines and spoke to the operators to see whether they used a ‘sexy voice’. One of the operators he spoke with was the complainant, who discussed practical aspects of the service, including how calls were conducted and paid for. A distinctive sound could be heard in the background of the call. The Authority upheld a complaint from the operator that this broadcast breached her privacy and was unfair. The combination of the extended audio of the complainant’s voice and the background sounds meant that she could be identified by people beyond family and close friends who would reasonably be expected to know about her phone sex chat line business. The complainant was also unaware she was being recorded and did not consent to the broadcast of this information. This resulted in a breach of her privacy and was also unfair. The Authority did not uphold the remaining aspects of BL’s complaint.

Upheld: Privacy, Fairness

Not Upheld: Good Taste and Decency, Children’s Interests, Balance, Accuracy

Orders: $2,000 privacy compensation; $1,500 costs to the Crown  

Introduction

[1]  During Jay-Jay, Dom & Randell, the hosts discussed their conversation with a guest the previous day who was described as a successful voice coach, and who gave tips about putting on a ‘sexy voice’. One of the hosts prank called two phone sex chat lines and spoke to the operators to see whether they used a ‘sexy voice’. One of the operators he spoke with was the complainant, who discussed practical aspects of the service, including how calls were conducted and paid for. A distinctive sound could be heard in the background of the call and this was commented on by the presenter. The phone call also appeared in video form on The Edge’s Facebook page.

[2]  The broadcaster confirmed that BL was unaware the call was being recorded for the purposes of a radio prank call, and that she did not consent to the broadcast of the call.

[3]  BL complained that the broadcast breached her privacy. She said she was identifiable by her voice and by the sounds in the background of the call, and that the prank has caused her public humiliation, and ongoing emotional and financial harm.

[4]  The issues raised in BL’s complaint are whether the broadcast breached the privacy, fairness, good taste and decency, children’s interests, balance and accuracy standards, as set out in the Radio Code of Broadcasting Practice. In our view the privacy and fairness standards are the most relevant to BL’s concerns, so we have focused our determination on those standards. We address the remaining standards at paragraph [43] below.

[5]  The broadcast took place at 9am on 31 January 2017 on The Edge. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Overview of findings and freedom of expression

[6]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. The right we have to express ourselves in the way we choose, and to receive information, is a fundamental freedom, but it is not an absolute freedom. It is nevertheless an important right, and we may only interfere and uphold complaints where the limitation on the right is reasonable and justified in a free and democratic society.¹

[7]  In making our determination on this complaint, we have therefore carefully considered the value of prank calls on radio as legitimate expressions of humour, and the importance of humour and satire generally, as forms of speech on which society places value.² Our task is to weigh the value of this item (and the importance of the expression) against the level of actual or potential harm that might be caused by the broadcast.

[8]  The Authority has previously found that in order for radio broadcast prank calls to have some entertainment value for audiences, such items must have some ‘cut or bite’.³ Some may consider that this item had the requisite bite, and was entertaining. However, any entertainment value may be outweighed by any actual or potential harm caused. In this case we consider that the risk of harm to the complainant outweighed any entertainment value that may have existed for listeners of The Edge.

[9]  Our primary concern in this case is that the broadcaster has confirmed that consent was neither sought, nor obtained, for the recording of the phone call or the broadcast, and this has evidently resulted in harm to the complainant. While we accept that the humour of prank calls, at times, relies on shock value, we consider that the complainant’s expectations around her privacy and the need for sensitivity in discussions about her business required further thought from the broadcaster. It was reasonable for the complainant to keep this aspect of her life private, or shared only with select individuals, and through the broadcast of this information nationwide, the complainant was denied the opportunity to disclose her occupation and business as she wished.

[10]  We have therefore concluded that, in this case, the broadcast of the prank call was unacceptable and failed to meet broadcasting standards. The harm to the complainant in terms of her right to privacy and fair treatment outweighed the broadcaster’s right to freedom of expression and the audience’s right to receive the broadcast. We therefore uphold the complaint under the privacy and fairness standards. We discuss in more detail our reasons for this finding below.

Did the broadcast breach BL’s privacy?

[11]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. But it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

The parties’ submissions

[12]  BL submitted that:

• A family member had heard the prank on the radio, recognised her and alerted her to the prank.
• This was not the only business she ran from her home and, due to the background noise, she was identifiable to other customers, family and friends who did not know about her ‘relationship information phone line’. Although she was not personally named, the sounds distinguished her from the general public.
• She has suffered financial loss as a result of the prank. The call caused her emotional stress and she was unable to do her job as a result.
• If she had known she was being recorded, she would have been more discreet about her identity and the information she was discussing.

[13]  MediaWorks submitted that:

• Little information about the complainant was given in the broadcast. Only her first name (a pseudonym provided in the Facebook video but edited out of the radio broadcast), her voice, and the background sounds were disclosed. It did not consider that this information would have led to identification of the complainant.
• Even if she were identifiable, this would only be to a small group of people familiar with her voice and the background sounds. Presumably, some of this group would already have knowledge of the complainant’s phone sex chat line business.

Our analysis

[14]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.⁴

Was BL identifiable?

[15]  When we consider a privacy complaint, we first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test for whether a person is identifiable is whether he or she would be identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁵

[16]  The first question therefore is whether BL could be identifiable through the sound of her voice and the distinctive sounds that could be heard in the background of the call.

[17]  The host’s discussion with the complainant was not brief, lasting for approximately two minutes and 54 seconds. In our view, there was a real possibility that the lengthy audio of the complainant’s voice, including her language and intonation, in combination with the repeated background sounds, may have resulted in people beyond close friends and family being able to identify her, including for example associates of her various businesses that deal with her by phone.

[18]  In this respect we note the complainant’s submission that she was recognised on the radio by a family member and this is how she was made aware of the prank. The complainant has also submitted that many people know her through the background sounds that could be heard during the call. These sounds were prolonged, loud and very noticeable, leading to various comments made by the host about them.

[19]  Turning to the second branch of the identification test, we also consider it was possible that not all of those people who could recognise the complainant by the audio would know about her particular business featured in the prank. The Authority has previously recognised that there are some matters individuals may prefer to keep private even from close friends and family⁶ (we discuss this point further below in our consideration of whether private information about BL was disclosed).

[20]  We therefore find that BL was identifiable beyond family and close friends who would reasonably be expected to know about her phone sex chat line business, for the purposes of the privacy standard. 

Did the broadcast disclose private information or material about BL?

[21]  We consider that private information was disclosed during this call, namely that BL operated a phone sex chat line and that she was available to speak to customers that day. As we have noted above, the complainant has submitted that not all of her family and friends are aware of her phone sex chat line business.

[22]  On one hand, we note that in this type of work, which involves members of the public phoning in, there is a risk that people who BL did not want to know about this particular business may choose to call the phone line. In this way, the complaint is similar to another case considered by the Authority, TD and MediaWorks TV Ltd.⁷

[23]  In that case, a female employee at a strip club complained that her privacy was breached when she was filmed at work, as her family, friends and work colleagues were unaware of her ‘personal choice of industry’. We commented in that case that the complainant ran the risk of people she knew and members of the public entering the strip club.⁸ However, the Authority upheld the complaint as the complainant was identifiable and her concerns were understandable, given that the industry was seen as unacceptable to some people.

[24]  In line with our decision in TD and MediaWorks, we acknowledge that the complainant’s work in relation to this phone line is sensitive and may be seen by others as unacceptable. We also accept the complainant’s submission that she chooses not to share this aspect of her business operations with everyone she knows. It was reasonable for BL not to expect this information would be broadcast on national radio, and the broadcast of this call removed BL’s choice to disclose her occupation in the manner of her choosing.

[25]  In these circumstances, we find that she had a reasonable expectation of privacy over the information disclosed in the broadcast.

Highly offensive disclosure

[26]  Where private information has been disclosed, over which the featured individual had a reasonable expectation of privacy, the next question for us to consider is whether this disclosure would be considered highly offensive to an objective reasonable person in the position of the person affected.⁹

[27]  The means by which private material is gathered will affect the offensiveness of the disclosure. For example, it may be highly offensive to broadcast material gathered by surreptitious or deceptive means.¹⁰ Additionally, where a person has not consented to the broadcast, disclosure of private facts is likely to be highly offensive.¹¹ The broadcaster has confirmed that the complainant was not aware or advised that she was being recorded, nor asked for her consent to broadcast the phone call. This was contrary to the rights of the complainant to have her privacy interests maintained and to be treated justly and fairly. We consider in these circumstances an objective reasonable person in BL’s position would find the broadcast highly offensive.

[28]  In terms of the material broadcast, we acknowledge that the content of the item overall was not particularly embarrassing, sensitive or traumatic. The host simply discussed practicalities with the complainant. However, as we have noted, the fact that BL ran a phone sex chat line was not necessarily known to her friends and family. We also consider there was an element of ridicule to the call, through the hosts’ reactions to the background sounds and in their implicit judgement of her occupation. These factors in our view also contributed to the offensiveness of the disclosure.

[29]  The overall result is that we believe the criteria outlined in paragraph [14] have been met, and that the complainant’s privacy was breached.

Defences: public interest and informed consent

[30]  Having found a breach of privacy, we move to consider whether any defences are available to the broadcaster.

[31]  There are two possible defences to a breach of privacy. Guideline 10f to the privacy standard states that it is a defence to a privacy complaint to publicly disclose matters of legitimate public interest. Guideline 10g states that it will not be a breach of privacy where the person concerned has given informed consent to the disclosure or intrusion.¹²

[32]  As we have discussed above at paragraphs [7] to [10], we consider there was little or no public interest in this broadcast. The broadcaster has confirmed that no consent was sought or given to the recording of the phone call or the broadcast. We therefore find that neither privacy defence is available to the broadcaster in this case.

Conclusion on privacy

[33]  As we have explained in our overview earlier in this decision, the importance of the right to freedom of expression means that we may only intervene and uphold a complaint where we are satisfied that limiting that right is reasonable and justified. In our view the complainant’s privacy interests were not given due consideration by the broadcaster, and the result is that her privacy has been breached by this broadcast, and harm has been caused to her. This undue impact on her in our view outweighs the broadcaster’s right to freedom of expression and the limited value in the item. We therefore uphold the privacy complaint.

Was the complainant treated unfairly?

[34]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹³

The parties’ submissions

[35]  BL submitted that:

• MediaWorks broadcast information that was obtained by misrepresentation and deception, which was not justified by any public interest.
• She was recorded and broadcast (as well as featuring on The Edge’s Facebook page) without her knowledge or consent.
• If she had agreed to the recording she could have been more discreet about the business information discussed.

[36]  MediaWorks submitted that:

• The complainant’s concerns were more appropriately considered as matters of privacy.
• The phone call was principally concerned with procedural aspects of the service and the complainant came across well in the segment.
• The audience was therefore not given an unduly negative impression of the complainant or her business.

Our analysis

[37]  Guideline 11g to the fairness standard states that the use of prank calls as a legitimate expression of humour will usually be acceptable, but caution should be exercised to prevent undue harm to unsuspecting parties.¹⁴ Guideline 11b also states that programme participants should be informed, before a broadcast, of the nature of the programme and their proposed contribution to it (except where justified in the public interest or where their participation is minor).¹⁵

[38]  In our view, the broadcaster in this case has not exercised caution to prevent undue harm to the complainant. BL was unaware that her call was being recorded for the purposes of a broadcast prank, she was not advised subsequently, before the broadcast, that she had been recorded or that the broadcaster proposed to broadcast the call on radio, and she did not consent to the broadcast. The result was that she was denied the opportunity to modify her behaviour and her frank discussion with the host, in order to mitigate any potential harm to both her dignity and to her other business interests. Most importantly, the complainant was denied the opportunity to decide if she wanted to discuss her business with a nationwide audience or to be identified in this business to family and friends.

[39]  The failure to obtain consent in our view was compounded by the fact that the broadcaster took steps to edit the phone call for broadcast on radio (MediaWorks advised that some content in the Facebook video version was removed prior to the audio being broadcast) but did not take the opportunity during that timeframe to advise the complainant of her participation or seek her consent to the broadcast. There was a window of opportunity during which these steps could have taken place, to ensure the complainant was treated fairly.

[40]  In these circumstances we consider that the complainant’s right to fair treatment, and the resulting harm to her, outweighed the broadcaster’s right to freedom of expression and the limited value in the broadcast. We therefore uphold BL’s fairness complaint.

Did the broadcast breach any other broadcasting standards?

The parties’ submissions

[41]  BL submitted that:

• The call drew attention to many males who were married or in relationships who called the relationship information line, which was in breach of the good taste and decency standard.
• This type of content should not have been broadcast when children could be listening (this segment was broadcast around 9am on a Tuesday morning). The broadcaster drew attention to this kind of business which could encourage children to make their own prank calls.
• A dating and relationship information phone line was controversial and played an important role in the community. If this was a non-controversial issue the hosts would not have targeted her, and the broadcast was therefore required to be balanced.
• The hosts did not check the accuracy of the information in the recording.

[42]  MediaWorks submitted that:

• Any strong language or sexual references were censored during the clip and the call was in keeping with audience expectations of The Edge.
• The Jay-Jay, Dom & Randell show was targeted at an adult audience and the material was edited. Sexual references were couched in vague and inexplicit terms which would not have disturbed or alarmed children.
• The broadcast was part of an entertainment radio programme rather than a news, current affairs or factual programme, and the balance and accuracy standards therefore did not apply.

Our analysis

[43]  We are satisfied that the broadcast did not breach any of the remaining broadcasting standards raised by the complainant. These standards either do not apply or were not breached because:

• Explicit language and sexual references were censored during the broadcast and the remaining discussion amounted to low-level innuendo only (with a majority of the discussion concerning practical matters such as payment).
• The prank was broadcast during children’s normally accepted listening times (before school). However, The Edge is targeted at adult audiences and this broadcast was not outside normal audience expectations for the station or Jay-Jay, Dom & Randell. Any sexual references (primarily in the nature of innuendo) were unlikely to be understood by any children listening.
• The Authority has consistently found that programmes, similar to Jay-Jay, Dom & Randell on The Edge, are not news, current affairs or factual programmes to which the accuracy or balance standards apply.¹⁶

[44]  We therefore do not uphold these aspects of BL’s complaint.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks Radio Ltd of an item on Jay-Jay, Dom & Randell on 31 January 2017 breached Standards 10 and 11 of the Radio Code of Broadcasting Practice.

[45]  Having upheld parts of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders

[46]  The complainant submitted that:

• She did not seek a broadcast statement.
• She suffered financial harm, with a drop in sales of approximately $2,500, and emotional harm and stress. As such, a remedy of $5,000 compensation was appropriate.

[47]  In her original referral to the Authority, the complainant expanded on the harm caused to her as a result of the broadcast. Her concerns can be summarised as follows:

• The invasion of her privacy traumatised her and diminished her trust in the media.
• The prank impacted on her relationships with family.
• She felt embarrassed, humiliated and targeted.
• She suffered stress and anxiety as a result, which impacted on her ability to work.

[48]  MediaWorks submitted that:

• The programme broadcast team believed sufficient care had been taken to ensure the complainant was not identifiable, and the broadcaster remained of the view that she was not in fact identifiable beyond close family and friends who would reasonably be expected to know about BL’s phone sex chat line business. However The Edge’s Content Director intended to provide a formal apology to the complainant.
• The Committee met with Jay-Jay, Dom and Randell to discuss the Authority’s decision, including guidelines incorporating specific advice about identifying factors such as voice characteristics and background sounds. This guidance would be issued to other stations.
• MediaWorks therefore considered publication of the Authority’s decision, and an apology to the complainant, was appropriate to remedy the breach.

Authority’s decision on orders

[49]  Where a complaint is upheld, the Authority may make orders, including, in the case of a privacy breach, directing the broadcaster to pay compensation to the person whose privacy has been breached, to broadcast and/or publish a statement, and/or to pay costs to the Crown.

Privacy compensation

[50]  Having upheld BL’s privacy complaint, we consider it appropriate to make an award of compensation to BL. Under section 13(1)(d) of the Broadcasting Act 1989, the maximum amount of privacy compensation we are able to award is $5,000.

[51]  In determining the amount to be awarded, we have had regard to the following factors:

• The complainant was not advised she was being recorded or asked for her consent to broadcast the phone call.
• The information revealed during the prank call (that BL ran a phone sex chat line and was one of the operators of this chat line) was sensitive and the prank denied the complainant the opportunity to keep this side of her business discreet, or disclose her line of work in the manner of her choosing, and this was a serious breach of her privacy.
• We acknowledge the broadcaster’s submission that it genuinely believed sufficient steps were taken to anonymise the complainant in the broadcast. However, we remain of the view that there was a real risk of her being identified beyond people who knew about this particular business.
• She suffered emotional harm, stress and anxiety which impacted on her ability to work, in relation to which BL has advised a loss of earnings of $2,500.

[52]  Taking the above considerations into account, as well as the Authority’s previous compensation awards, we find that an award of $2,000 compensation to BL for the breach of her privacy is appropriate.

Costs to the Crown

[53]  The Authority may also make an award of costs to the Crown having regard to various factors, including the conduct of the broadcaster, the seriousness of the breach of standards and previous decisions. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.

[54]  In determining whether costs to the Crown are warranted, we have taken the following into account:

• The prank call was originally posted to Facebook, and then edited for broadcast (removing the complainant’s pseudonym and business details), which provided a window of opportunity for the broadcaster to inform BL of her participation and seek BL’s consent to the broadcast.
• The prank was an intentional feature of the programme and carried out by the programme hosts (ie, the breach of privacy did not occur as a result of information provided by a third party).
• We have found that there was implicit judgement and an element of ridicule to the call. In other words, as the complainant has submitted, the ‘joke’ was made at her expense.
• The broadcaster did not uphold the complaint, however it offered to provide a formal apology to the complainant.
• The Standards Committee genuinely believed sufficient steps were taken to avoid identification of the complainant.
• The Committee has discussed the Authority’s decision with the programme hosts and issued guidance on potential identifying factors.

[55]  Having regard to the above factors, we consider costs to the Crown of $1,500 would be appropriate. This marks the upheld decision under both the privacy and fairness standards, the intent behind the prank call, the fact that the broadcaster had an opportunity to seek consent from the complainant but did not do so, and that the prank created humour at the complainant’s expense.

Broadcast statement/apology

[56]  Taking into account the complainant’s submissions and the circumstances of the case, we do not consider that a broadcast statement and/or public apology would be appropriate. We are satisfied that the release of this decision and the order of costs to the Crown are adequate censure in the circumstances.

[57]  Having said this, we note that MediaWorks has offered a formal apology to the complainant, which in our view would be appropriate.

Orders

1. Under section 13(1)(d) of the Act, the Authority orders MediaWorks Radio Ltd to pay to the complainant costs in the amount of $2,000 within one month of the date of this decision, by way of compensation for the breach of her privacy.

2. Under section 16(4) of the Act, the Authority orders MediaWorks Radio Ltd to pay to the Crown costs in the amount of $1,500 within one month of the date of this decision.

The order for costs will be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
9 August 2017

 
Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1      BL’s formal complaint – 31 January 2017
2      MediaWorks’ response to the complaint – 1 March 2017
3      BL’s referral to the Authority – 27 March 2017
4      MediaWorks’ confirmation of no further comment – 5 May 2017
5      BL’s submissions on the provisional decision and orders – 30 June 2017
6      BL’s further submissions on privacy compensation – 30 June 2017
7      MediaWorks’ submissions on the provisional decision and orders – 6 July 2017

¹ See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6

² See Guideline 11g to the fairness standard, page 31 of the Broadcasting Standards in New Zealand Codebook, see also the discussion at [51] of Albery and RadioWorks Ltd, Decision No. 2011-038

³Albery and RadioWorks Ltd, above

⁴ Guidelines 10a and 10b

⁵ Broadcasting Standards in New Zealand Codebook, Guidance: Privacy, page 59

⁶ See, for example, SW and Television New Zealand Ltd, Decision No. 2015-030 at paragraph [12]

⁷ Decision No. 2014-048

⁸ See also the decision PN and TVNZ(Decision No. 2016-041), in which a Quarantine Officer’s role and infringement of a couple at the airport did not amount to information which the complainant could reasonably expect to remain private. The infringement took place in a public space, in view of other passengers, and the complainant therefore did not have a reasonable expectation of privacy over information such as his role and employer.

⁹ Guidelines 10b and 10e to Standard 10

¹⁰ 6.1, Guidance: Privacy, page 60 of the Broadcasting Standards in New Zealand Codebook

¹¹ 6.2, Guidance: Privacy, page 60 of the Broadcasting Standards in New Zealand Codebook

¹² Guideline 10g to Standard 10

¹³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

¹⁴ Page 31, Broadcasting Standards in New Zealand Codebook

¹⁵ As above

¹⁶ See, for example: BC and MediaWorks Radio Ltd(Decision No. 2014-128), Baird and RadioWorks Ltd(Decision No. 2013-041), Simmons and Walker-Simmons and RadioWorks Ltd(Decision No. 2012-004).